(Apr 20, 2011) On April 13, 2011, the Supreme Court of New South Wales, in Australia, held that a school had breached its duty of care to a former student by failing to implement its anti-bullying policy or to take steps to adequately deal with ongoing bullying behavior toward her by other students while she was enrolled at the school. (Oyston v St Patrick's College[2011] NSWSC 269, at 256.)

In 2010, Jazmine Oyston sued her former high school, St. Patrick's College (a private girls' school in Campbelltown), for negligence. She alleged that she had been injured while enrolled at the school, including suffering panic attacks, anxiety, and depression, "as a result of being exposed to bullying and harassment by other pupils of the school between 2002 and 2005." (Id.at ¶ 1.) Her case was that the school's policies and practices, as implemented in her situation, "failed to protect her from a recognized and foreseeable risk of harm." (Id.at ¶ 6.)

The judge in the case considered that there was a foreseeable risk, which was in fact foreseen by the school, that bullying at the school might result in harm, including psychiatric injury. Furthermore, there was no issue that "a reasonable person in the College's position, would have taken steps to protect a student such as Ms. Oyston, from the risks which bullying posed." (Id.at ¶ 15.) The issue for the court was therefore whether the steps taken by the school were adequate to ensure that the duty of care to Oyston was met. (Id.)

The judge found that, despite the school having published clear policies in relation to bullying and having been active in its attempts to deal with what was a recognized problem at the school, its response in Oyston's case was "ad hoc, rather than systematic," and did not demonstrate the types of responses envisaged by the policies. (Id. at ¶¶ 16-37.) The judge therefore held that "the College's response to the bullying problem which existed at the school by way of its implementation of its policies was inadequate, so far as Ms. Oyston was concerned," and that there were significant adverse consequences of this for Oyston. (Id.at ¶¶ 51 & 61.) Furthermore, the judge noted, the school had been aware that Oyston was being seriously affected and had failed to provide adequate safeguards. The judge considered that "[s]uch safeguards required active investigation of the complaints made and monitoring whether any bullying had been brought to a halt." (Id.at ¶ 311.)

In terms of causation, the judge held that, although Oyston was particularly vulnerable to psychological injury and her experiences at home and her parents' inability to effectively deal with the bullying contributed to the harm suffered, her injuries were "the direct result of the College's failure to take the very steps it had devised to prevent such injury being inflicted by one student upon another." (Id.at ¶ 320.)

Oyston sought almost AU$540,000 (about US$571,000) in damages. (Id.at ¶ 339.) In her decision, the judge set out her views relating to particular types of damages in the context of the evidence presented, but she has not yet determined the amount to be awarded. (Id. at ¶¶ 340-380.)

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